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Home > Journals > Michigan Law Review > MLR > Volume 29 > Issue 5 (1931)

 

Abstract

Broad counterclaim statutes are desirable because they allow cross demands to compensate each other, and because they avoid multiplicity of suits. These two advantages are alone sufficient to justify broad counterclaims, but there is a further advantage in that a broad counterclaim statute permits a resident in a suit brought against him by a nonresident to set up any independent claim against that nonresident which-he may have without prosecuting a separate action. Not only is it a heavier expense to bring a separate action, but it is often impossible to do so without going to the domicil of the nonresident and instituting the suit there. Such a proceeding is too expensive to justify its adoption in any suit not involving very large interests, and yet a resident is often faced with the alternative of adopting it or of giving up his claim. A foreign corporation coming into a state for the sole purpose of prosecuting a suit is not doing business within the state, and, consequently, is not amenable to process there. Even an individual nonresident coming into a state solely for the purpose of litigating a suit is privileged against service of process while there. Although this privilege does not apply where the second action grows out of the first, and is for the purpose of fully adjusting the rights involved in the first, it does permit a nonresident to procure a judgment against a resident and to embarrass him by attachment or execution against his property without affording the resident any opportunity to set up a good but independent claim which he may have against the nonresident. A broad counterclaim statute would permit the resident to set up his claim by filing it as an answer to the nonresident's suit, and there would be no necessity for service of process.

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